Alamia v. Lozano

On
appeal from the County Court at Law No. 4 of Hidalgo County,
Texas.

Before
Justices Contreras, Benavides, and Longoria

MEMORANDUM OPINION

GINA
M. BENAVIDES, Justice

By two
issues, appellant Richard Alamia appeals a legal malpractice
judgment rendered against him. Alamia argues that (1) the
evidence is legally insufficient to support the verdict
against him and (2) judicial estoppel should apply to
appellee Andres Lozano's testimony during the malpractice
trial. We affirm.

I.Background

A.Prior Cause of Action

In
order to properly address the merits of Lozano's legal
malpractice case, we will discuss the relevant facts and
disposition of the underlying case.[1]See Lozano v.
Yeary, No. 13-11-00136-CV, 2013 WL 268941 (Tex.
App.-Corpus Christi Jan. 24, 2013, no pet.) (mem. op., not
designated for publication). Lozano is the president of
Sandia Depot, Inc. (Sandia Depot), a corporation involved in
the import and export of watermelons. Lozano entered into a
verbal contract with Ray Yeary of Sky Farms, Inc. (Sky
Farms), in which Sandia Depot would supply watermelon seeds
and supplies to Sky Farms, which would grow the watermelons,
and Sandia Depot would take the watermelons and sell them.
Upon sale, Sandia Depot would deduct its expenses up front,
take a commission from the remaining profits, and pay Sky
Farms the remaining money.

In
2009, Lozano hired attorney Alamia to file a breach of
contract action against Yeary and Sky Farms. Alamia filed
suit naming the plaintiff as Andres Lozano,
"individually d/b/a Sandia Depot, " and naming
defendants Yeary individually, and d/b/a Sky Farms, Inc.
Although Alamia filed an amended petition during the course
of the lawsuit, Alamia did not modify the plaintiff's
name in the lawsuit. Lozano contends the proper plaintiff was
Sandia Depot, not Lozano individually. Sky Farms filed a
counterclaim and verified denial asserting Yeary was not
liable in an individual capacity. Alamia failed to file any
response to the counterclaim.

The
case proceeded to trial and the jury found in favor of Sky
Farms and awarded a $240, 996.57 judgment against Lozano in
his individual capacity. Lozano appealed the judgment to this
Court and raised a legal sufficiency of evidence and
sufficiency of damages challenge. This Court affirmed the
judgment of the trial court. See id.

B.
Current Cause of Action

Following
the jury verdict in favor of Sky Farms, Lozano filed this
suit against Alamia alleging a cause of action for legal
malpractice. Lozano's pleadings allege that Alamia was
negligent by filing the case naming Lozano in his individual
capacity, rather than his corporation as the plaintiff.
Alamia also did not file any discovery requests, respond to
the counterclaim or verified denial, or amend the original
petition to shield Lozano from personal liability.

At a
trial before a jury, Alamia, Lozano, and Gary Patterson, an
expert witness attorney, testified. During Alamia's
direct testimony, Lozano offered evidence that showed that
Alamia initially sent Yeary a pre-trial demand letter, which
identified his client as Sandia Depot, with attached
accounting documents also listing Sandia Depot. Alamia
admitted he did not file a verified denial on Sky Farms'
counterclaim. Alamia also admitted he "got it
wrong" by filing the lawsuit in Lozano's individual
capacity, instead of under Sandia Depot's corporate
capacity.[2]

However,
Alamia also claims that Lozano was apprised of the lawsuit
every step of the way by either himself or his staff. Alamia
claims Lozano was given a copy of the original and amended
petitions, was apprised of the settlement offer of $150, 000
made by Sky Farms and rejected by Lozano, and that Lozano
told Alamia's staff that he wanted to proceed in the
lawsuit individually, instead of as Sandia Depot. Alamia also
claimed that, even though Lozano had him draw up corporate
documents in the past, Lozano did not operate as a
corporation[3] and the verbal contract with Sky Farms in
the underlying dispute was done in an individual capacity.

On
cross-examination, Alamia defended his decision to file the
lawsuit in Lozano's individual capacity because he stated
that none of the evidence presented by Lozano showed that
Sandia Depot entered into the agreement with Sky Farms.
Alamia also testified that he did not file requests for
discovery to Sky Farms because it was normally a
"professional courtesy" to turn over the necessary
documents. Alamia argued that Lozano turned over two sets of
invoices when requested by Sky Farms, and the differences in
the sets of invoices are what caused Lozano to lose his case.

Lozano
testified that he decided to incorporate his business for
liability purposes and Alamia had previously drafted the
necessary documents for him and admitted the articles of
incorporation for Sandia Depot, filed with the Texas
Secretary of State, into evidence. Lozano stated that even
though Alamia had handled multiple lawsuits on his behalf,
Lozano never spoke to Alamia directly, only to his staff.
Lozano testified that his business was conducted as Sandia
Depot, and he acted in his capacity as the president. The
agreement involved in the underlying case was between Sandia
Depot and Sky Farms, and any checks written were out of
Sandia Depot's account, according to Lozano. Lozano also
contradicted Alamia's testimony and said he was never
given a copy of the original petition, amended petition, or
counterclaim and did not know he had been countersued until
the trial. Lozano also claimed he first heard of Sky
Farms' offer of $150, 000 by Alamia's staff after it
had been rejected by Alamia. Lozano told jurors that he would
have accepted the offer had he been notified.

Patterson
also testified as an expert witness on behalf of Lozano.
Patterson is a licensed lawyer and testified he was familiar
with the standard duty of care required by attorneys. After
reviewing the documents in this case, Patterson was of the
opinion that Alamia's original petition lacked due
diligence or competency. Patterson also spoke about ways
Alamia could have corrected the mistakes in the original or
amended petition. It was Patterson's opinion that the
lawsuit was brought improperly and that Alamia's breach
of his duty was the proximate cause of the judgment rendered
against Lozano.

The
jury found in favor of Lozano and awarded damages in the
amount of $285, 996.52 against Alamia. Alamia filed a motion
to reform the judgment or for a new trial which was denied by
the trial court. This appeal followed.

II.Legally Sufficient Evidence

By his
second issue, which we will address first, Alamia argues the
evidence was legally insufficient to support the jury's
verdict.

A.Standard of Review

In
reviewing a legal sufficiency issue, a court reviews the
evidence in a light most favorable to the trial court's
judgment and indulges every reasonable inference to support
the judgment. See City of Keller v. Wilson, 168
S.W.3d 802, 822 (Tex. 2005). A sufficiency challenge will be
sustained if: (1) there is a complete absence of evidence of
a vital fact; (2) the court is barred by rules of law or of
evidence from giving weight to the only evidence offered to
prove a vital fact; (3) the evidence offered to prove a vital
fact is no more than a mere scintilla; or (4) the evidence
establishes conclusively the opposite of a vital fact.
Id. at 810. More than a scintilla of evidence exists
if the evidence allows for reasonable minds to reach
differing conclusions about a vital fact's existence.
Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778,
782-83 (Tex. 2001).

B.
Applicable Law

In
order to "prevail on a legal malpractice claim, a
plaintiff must show 'that (1) the attorney owed the
plaintiff a duty, (2) the attorney breached that duty, (3)
the breach proximately caused the plaintiff's injuries,
and (4) damages occurred.'" Alexander v. Turtur
& Assocs., Inc., 146 S.W.3d 113, 117 (Tex. 2004)
(quoting Peeler v. Hughes & Luce, 909 S.W.2d
494, 496 (Tex. 1995)). "When the plaintiff's
allegation is that some failure on the attorney's part
caused an adverse result in prior litigation, the plaintiff
must produce evidence from which a jury may reasonably infer
that the attorney's conduct caused the damages
alleged." Id.

Breach
of the standard of care and causation are separate inquires,
however, and an abundance of evidence as to one cannot
substitute for a deficiency of evidence as to the other.
Id. at 118. Thus, even when negligence is admitted,
causation is not presumed. Id. Moreover, the trier
of fact must have some basis for understanding the causal
link between the attorney's negligence and the
client's harm. Id.

"Legal
malpractice may include an attorney's failure to exercise
ordinary care in preparing, managing, and presenting
litigation." Id. at 119. However, decisions on
which witnesses to call, what testimony to obtain or when to
cross-examine almost invariably are matters of professional
judgment. Id. In order to fully understand tactical
decisions, it is normally necessary to have expert testimony.
Id. at 120.

C.
Discussion

Alamia
initially argues "no duty" because no
attorney-client relationship existed between himself and
Lozano. Alamia argues that he represented Sandia Depot, not
Lozano individually and therefore, Alamia owed no duty to
Lozano. "An attorney-client relationship must exist
before an attorney is obligated to provide proper legal
services." Yaklin v. Glusing, Sharpe &
Krueger, 875 S.W.2d 380, 383 (Tex. App.-Corpus Christi
1994, no writ). Despite Alamia's argument on appeal,
Alamia testified on direct examination that "Sandia
Depot and Andres Lozano were my clients" and that he
"represent[s] Andres Lozano and Sandia Depot."
Alamia himself establishes he considered Lozano a client and
therefore, owed him a duty as a client. The first requirement
to establish malpractice is supported by sufficient evidence.

Having
established the evidence was sufficient to show a duty was
owed, we examine if there was sufficient evidence that Alamia
breached his duty to Lozano. See Alexander, 146
S.W.3d at 117. Attorneys have a duty to their clients.
See Yaklin, 875 S.W.2d at 383. Patterson testified
as a legal expert regarding what requirements attorneys are
expected to uphold for their clients. Patterson also
explained the purpose of incorporating a business and how
incorporation protects an individual from personal liability.
Additionally, Patterson stated he saw no attempt in terms of
pleadings by Sky Farms to "bust" the corporate
shield. Patterson testified, in his opinion, that the
original petition showed a lack of due diligence and
competency in the way it was written and filed; he explained
that the style of the case and the party listed in the body
of the petition were not the same. Patterson explained to the
jury that the petition must be specific because it "is
what's driving the entire lawsuit." Patterson also
testified that even if mistakes are made in the original
petition, an attorney can ask for a trial amendment to
correct a mistake that was missed, and also noted that no
corrections occurred in Lozano's case. Patterson also
agreed with Lozano that there was evidence that Sandia Depot
was incorporated based on what he reviewed prior to trial,
and he also stated he saw no evidence that Lozano ever paid
for any of the transactions with Sky Farms in an individual
capacity. He also explained to the jury what a verified
denial is, how a party can use it to deny liability if being
sued in the wrong capacity, and how not filing the denial can
waive any defense, which is what happened in Lozano's
case according to Patterson. Patterson also testified that
Alamia should have conveyed any settlement offers and
rejections of those offers in writing in order to have proper
documentation and evidence.

Lozano
additionally testified that he hired Alamia on behalf of
Sandia Depot, as its corporate representative. Alamia knew or
should have known that Lozano is Sandia Depot's corporate
representative, since he handled the incorporation documents
for Lozano. Lozano also testified that he never met with
Alamia, just members of his staff prior to trial and was not
kept aware of the proceedings in the lawsuit. Additionally,
Alamia agreed that he filed no discovery requests or verified
denials in the countersuit, and failed to make the proper
trial amendments. Accordingly, we hold that the record is
legally sufficient to establish that Alamia breached his duty
to Lozano. See id.

Next,
Lozano is required to show the breach was the proximate cause
of his injuries. Not only did Patterson testify to the
deficiencies and Alamia's breach of his duty of
representation, but he also opined that the lawsuit was
improperly brought by naming Lozano in an individual
capacity. Patterson explained to the jury that a corporation
without assets is judgment-proof, and if the lawsuit had been
properly filed, Lozano would not have been individually
liable for the judgment. Patterson summed up his testimony by
stating attorneys that do not properly communicate with
clients or prepare adequately for trial are in breach of
their duty owed to the client. Patterson stated he felt
Alamia breached the standard of care required by attorneys
and Alamia's breach of his duty to Lozano was the
proximate cause of the judgment against Lozano due to the
lawsuit being filed in Lozano's individual capacity.

In
addition to Patterson's testimony, Alamia's own
testimony showed lack of diligence in the Lozano lawsuit.
Alamia testified first about the rules of professional
conduct and duty of competence expected from lawyers. Alamia
testified that Lozano, on behalf of Sandia Depot, hired him
to sue Sky Farms. Alamia's initial demand letter to Sky
Farms, which was entered into evidence, identifies the client
as Sandia Depot and Alamia agreed that all the attached
accounting documents to the demand letter also referenced
Sandia Depot instead of Lozano. When testifying about his
failure to file a verified denial, in response to
Lozano's question of, "Meaning, you got it wrong,
it's not Mr. Lozano, individually, it's Sandia Depot,
Inc., right?", Alamia's response was
"That's correct." Alamia also explained that
his staff interacted mainly with Lozano because he is a
"busy trial attorney." Alamia also testified that
he felt discovery requests were not needed because it was
customary to turn over documents, even though he agreed that
filing certain requests could have cleared up any mistakes
regarding the parties to the lawsuit. Alamia continued to
claim that Sandia Depot was not a proper corporation because
Lozano had not "initiated the corporate structure,
" even though Lozano's evidence showed the articles
of incorporation were on file with the Secretary of State.
The testimony of Patterson and Alamia alone provide legally
sufficient evidence of the third requirement. See
id.

Lastly,
Lozano must show that he incurred damages to establish a
malpractice claim. After the initial trial, Lozano was
individually responsible for $240, 996.57 judgment and paid
the damages in full to Sky Farms. Alamia made the decision to
name Lozano individually and to not file any amended
petitions naming Sandia Depot as a party to the lawsuit.
Based on this, the evidence is legally sufficient to
establish the fourth element of Lozano's malpractice
claim. Therefore, Lozano met all the requirements to
establish a malpractice claim.

Based
on the testimony presented to the jury, Alamia's decision
to file the lawsuit against Sky Farms in Lozano's
individual capacity was the cause of the judgment against
Lozano. Lozano is not required to show that he would have
prevailed if the lawsuit had been properly filed naming
Sandia Depot as the plaintiff, only that but for Alamia's
breach of duty, the outcome would have been different.
See id. Even if Sandia Depot had lost in the initial
lawsuit, Lozano would not have been individually liable if
the lawsuit had been properly filed naming Sandia Depot as
the plaintiff. We overrule Alamia's second issue.

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